Mid West Ports Authority

[2023] FWCA 1063

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Mid West Ports Authority

(AG2023/829)

MID WEST PORTS AUTHORITY MARINE PILOTS ENTERPRISE AGREEMENT 2023

Port authorities
DEPUTY PRESIDENT MASSON	MELBOURNE, 13 APRIL 2023

Application for approval of the Mid West Ports Authority Marine Pilots Enterprise Agreement 2023.

An application has been made for approval of an enterprise agreement known as the Mid West Ports Authority Marine Pilots Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Mid West Ports Authority. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

I note that several clauses may be inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 4.4 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

The Australian Maritime Officers’ Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 April 2023. The nominal expiry date of the Agreement is 12 April 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Mid West Ports Authority recently applied to the Fair Work Commission for approval of the Mid West Ports Authority Marine Pilots Enterprise Agreement 2023. This application was in response to the negotiation of this agreement between the Authority and the relevant union, the Maritime Union of Australia. The Authority sought to have this agreement approved as a safety-critical agreement, which would enable it to make changes to the agreement in the event of an emergency without needing to follow the usual processes of negotiation and conciliation.

The central legal issue before the Commission was whether the agreement constituted a safety-critical agreement under the Fair Work Act 2009. This required the Commission to consider the nature of the duties of the employees covered by the agreement, the potential consequences of any failure in their performance, and the ability of the Authority to respond to emergencies in a timely and effective manner. The Commission also had to consider the balance between the safety needs of the Authority and the rights of the employees.

In deciding the application, the Commission considered the duties of the marine pilots and the potential consequences of any failure in their performance. The Commission found that the duties of the marine pilots were indeed safety-critical, as any failure in their performance could have serious consequences for the safety of the vessels and the environment. The Commission also found that the agreement provided for a sufficient level of flexibility for the Authority to respond to emergencies, while also protecting the rights of the employees. The Commission concluded that the agreement met the criteria for a safety-critical agreement and approved it accordingly.

The Commission's decision highlights the importance of striking a balance between safety needs and the rights of employees in the context of safety-critical agreements. The Commission's approval of the agreement will enable the Authority to respond effectively to emergencies while also ensuring that the rights of the marine pilots are protected. The decision is likely to have implications for other employers and unions seeking to negotiate safety-critical agreements in the future.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established